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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SINGLE BENCH
JAVED IQBAL WANI, J.
Saif-ud-Din Mir – Appellant
Versus
University of Kashmir & Ors. – Respondent
WP(C) No. 1851 of 2020
Decided on : 01-02-2023
Delay and Laches - University Employment Dispute - Article 226 - [DELAY AND LACHES] - [UNIVERSITY EMPLOYMENT DISPUTE] - [Article 226 of the Constitution] - The court rejected the plea of delay and laches raised by the respondents, citing the discretionary nature of the powers of the High Court under Article 226 and the absence of a fixed period for considering delay. The court emphasized that each case must be decided according to its circumstances.
Fact of the Case:
The petitioner, an Assistant Registrar at the University of Kashmir, sought quashment of an order dated 29.01.2009, which released the grade of the post in his favor w.e.f. 29.01.2009 instead of 14.12.2007, and requested the release of all arrears while fixing and drawing his retiral benefits accordingly. The respondent-University objected to the petition, claiming it was grossly misconceived and suffered from the vice of laches due to the delay in filing the challenge.
Finding of the Court:
The court rejected the plea of delay and laches raised by the respondents, citing the discretionary nature of the powers of the High Court under Article 226 and the absence of a fixed period for considering delay. The court emphasized that each case must be decided according to its circumstances. The court also found that the petitioner was entitled to the pay and grade attached to the post of Deputy Registrar/Deputy Controller of Examinations w.e.f. 14.12.2007 instead of 29.1.2009 and to the arrears thereof, based on the treatment of the petitioner and his co-employee by the respondent-University.
Issues: The issues involved in the case included the delay and laches raised by the respondents, the entitlement of the petitioner to the pay and grade attached to the post of Deputy Registrar/Deputy Controller of Examinations, and the discriminatory treatment by the respondent-University.
Ratio Decidendi: The court's decision was based on the discretionary nature of the powers of the High Court under Article 226, the absence of a fixed period for considering delay, and the principle of equality enshrined in the constitution, which the respondent-University had violated by subjecting the petitioner to hostile discrimination vis a vis his co-employee.
Final Decision: The petition was allowed, and the impugned order dated 29.01.2009 was quashed to the extent it directed the promotion of the petitioner in the pay scale of Rs. 12000-18300 w.e.f 29.1.2009. The respondents were commanded to grant the benefits of pay and grade attached to the post of Deputy Registrar/Deputy Controller of Examinations to the petitioner w.e.f 14.1.2007 instead of 29.01.2009 and release all arrears thereof in favor of the petitioner besides fixing and drawing his retiral benefits accordingly.
JUDGMENT :
1. To appreciate the gravamen of the controversy involved in the instant petition, exposition of facts in brief are detailed out hereunder:
• The petitioner herein along with one co-employee namely Mohd. Yasin Malik came to be appointed against the post of Deputy Registrar/Deputy Controller of Examination against the available post (internal quota) while working as Assistant Registrar/Assistant Controller of Examinations in the University in their own pay and grade for a period of six months in the first instance subject to the payment of charge allowances as admissible under rules in terms of order No. F(Promotion-DRs) Adm/KU/07 dated 14.12.2007.
• The respondent-University in terms of Order No. F(Promotion-Dy. Reg) Gen-Adm/KU/09 dated 29.01.2009 accorded sanction to the temporary promotion of the petitioner against the post of Deputy Registrar in the pay scale of Rs. 12000-18300 w.e.f. 29.01.2009.
• The petitioner prior to the issuance of the order dated 29.01.2009 is stated to have submitted a representation before the respondent-University along with his above named co-employee for their regular promotion against the post of Deputy Registrar/Deputy Controller of Examinations with a regular scale of pay of Rs. 12000-18300 as also having agitated the issue through Kashmir University Officers' Association before the respondent-University.
A further representation is also stated to have been submitted by the petitioner in this regard separately before the Controller of Examinations on 10.1.2009 requesting therein for consideration of his case for placement in the pay scale of Deputy Registrar/Deputy Controller of Examination w.e.f., 14.12.2007 on account of his ensuing superannuation on 31.1.2009.
• The petitioner superannuated on 31.1.2009 and the respondent-University, however, did not accord consideration to his case for placement in the grade of Rs. 12000-18300 w.e.f., 14.12.2007 i.e. when the petitioner came to be appointed against the post of Deputy Controller of Examinations in his own pay and grade along with his above named co-employee.
• After the superannuation of the petitioner, his above named co-employee came to also be promoted as Deputy Registrar in terms of Order dated 27.5.2009, however, the charge allowances drawn by him while working as acting Deputy Registrar/Deputy Controller of Examinations in terms of order dated 14.12.2007 were directed to be recovered from the arrears payable to him, aggrieved whereof, he filed SWP no. 592/2011 before this Court which came to be disposed of on 16.9.2013 and while allowing the same, the order under challenge in the petition whereunder charge allowances drawn by him were directed to be recovered w.e.f 14.12.2007 came to be quashed.
• The respondent-University complied with the judgment (supra) dated 16.09.2013 earned by the above named co-employee of the petitioner whereby the promotion against the post of Deputy Registrar/Deputy Controller of Examinations came to be given effect to w.e.f., 14.12.2007 and consequently the arrears of pay released in his favour.
• The petitioner though have had prior to his retirement also sought effect to his promotion as Deputy Registrar/Deputy Controller of Examinations from the respondent-University w.e.f., 14.12.2007 instead of 29.1.2009 and had sought the same while submitting representations even after his retirement continued to seek the extension of said benefit from t
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